SCC Gets Its Power Lines Crossed On Privacy

This week, the Supreme Court of Canada released a decision that has important implications for the interpretation and application of section 8 of the Canadian Charter of Rights and Freedoms, as well as for privacy law generally. The problematic decision, which includes two sets of reasons concurring in the result and a strong dissent by the Chief Justice and Justice Fish, seems likely to provoke significant debate and potential uncertainty in its application.

In R. v. Gomboc, 2010 SCC 55, the Court considered the limits on the ability of law enforcement to use as evidence subscriber records obtained without a warrant from third party service providers, and more broadly, offered guidance as to what constitutes a reasonable expectation of privacy with respect to such records.

The decision considered the validity of a search warrant obtained based on evidence collected without a warrant from a device that collected detail data respecting the electrical power usage of a homeowner suspected of operating a marijuana "grow op". This device, known as a digital recording ammeter (DRA) was installed by the electrical utility at the behest of police, who suspected a marijuana growing operation, in order to determine whether electrical usage patterns were consistent with those typical of grow ops. The resulting data was then used to help obtain a warrant to search the premises.

A majority of the court found that the resulting search of the premises was not unreasonable, and therefore did not offend the Charter, overturning a decision of the Alberta Court of Appeal and restoring the original conviction by the trial judge; however, this decision was supported by two different sets of reasons. One block of justices considered that no reasonable expectation of privacy arises with respect to the DRA data, since it revealed nothing about the intimate or core activities of the occupants, and its disclosure to police without a warrant was explicitly permitted by regulation...